Sonida, LLC v. Spoverlook, LLC ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 8, 2015
NO. 32,661
SONIDA, LLC,
Plaintiff-Appellee,
v.
SPOVERLOOK, LLC,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Violet C. Otero, District Judge
Sommer, Karnes & Associates, LLP
Karl H. Sommer
James R. Hawley
Santa Fe, NM
for Appellee
Keleher & McLeod, P.A.
W. Spencer Reid
Thomas C. Bird
Justin B. Breen
Albuquerque, NM
for Appellant
OPINION
KENNEDY, Judge.
{1} Defendant SPOverlook, LLC, (SPO) appeals an award of attorney fees to
Plaintiff Sonida, LLC (Sonida), whom the district court found to be the prevailing
party in a “dispute arising out of or relating to a lien action” under NMSA 1978,
Section 48-2-14 (2007). The award of attorney fees was made following a jury trial
that awarded money to both parties following a dispute over construction of a house.
SPO asserts that Sonida’s lien was invalid, that the district court’s denial of its motion
for summary judgment based on the invalidity of Sonida’s lien was erroneous, and
that an invalid lien cannot support the award of fees.
{2} The contents of mechanics’ and materialmen’s liens are prescribed by statute,
NMSA 1978, §§ 48-2-1 to -17 (1880, as amended through 2015), and require
specifically that any claim “must be verified by the oath of [the claimant] or of some
other person.” Section 48-2-6. We face two questions in this case: can Sonida prevail
on a claim to foreclose an unverified materialmen’s lien, and was the district court’s
award of attorney fees based on work performed in conjunction with “contract and
lien claims” sufficiently justified as a “dispute arising out of or relating to a lien
action” to permit the award? Section 48-2-14.
{3} We hold that even in light of decades of liberal construction and permitting
substantial compliance in drafting lien claims, Sonida’s unverified lien was void ab
initio. To the extent that no valid lien existed, nothing supported an award of attorney
fees predicated on a claim “arising out of or related to a lien[.]” Section 48-2-14.
Since the district court’s sole justification for the award was Section 48-2-14, we
conclude that the award of attorney fees to Sonida was erroneous, and we reverse the
district court, remanding for entry of an amended judgment.
BACKGROUND
{4} The parties do not dispute the facts underlying this appeal. Real estate
developer SPO contracted with New Mexico Dream Home, LLC (NMDH) to
construct a house in Sandoval County for a television show. SPO in turn
subcontracted with home-builder Sonida to build the home, agreeing to pay Sonida
approximately one million dollars for the job. Before construction began, SPO and
Sonida did not have a written agreement between them, although subsequent
arrangements were reached, and Sonida began construction of the home. As
construction went forward, NMDH issued three payments of approximately $250,000
each to SPO. SPO forwarded two payments to Sonida. A dispute arose when SPO did
not forward a third payment to Sonida.
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{5} Sonida filed a claim of lien against the home to protect its interests, and then
amended it twice; all of which were recorded in the Sandoval County Clerk’s office.
All three lien documents were signed by a Sonida representative and acknowledged
before Sonida’s attorney, who notarized them. However, none of Sonida’s lien
documents included any language verifying upon oath the truth of its contents.
{6} Sonida then brought suit in the district court against SPO and NMDH for the
money it maintained it was owed. In Count 4 of Sonida’s complaint, Sonida sought
foreclosure of its lien. SPO’s answer denied that Sonida was entitled to file a claim
of lien, foreclose on the lien that it had filed, or collect attorney fees for litigating its
foreclosure. SPO thereafter filed a motion for summary judgment asserting that the
lien claim was invalid and unenforceable because it was not verified pursuant to
Home Plumbing & Contracting Co. v. Pruitt, 1962-NMSC-075, 70 N.M. 182, 372
P.2d 378. In its response to SPO’s motion, Sonida argued that SPO had waived its
‘void for lack of verification’ argument because SPO had not raised it as an
affirmative defense in the its answer. The district court denied SPO’s motion without
explanation, and the case proceeded to trial.
{7} Following a jury trial in which both parties received awards, Sonida moved for
an award of attorney fees claiming it was the prevailing party in a lien action under
Section 48-2-14. The parties submitted proposed findings of fact and conclusions of
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law, including SPO’s renewed assertion that Sonida was not the prevailing party in
a lien action. The district court entered its final judgment granting Sonida’s request
for attorney fees. In separate findings and conclusions, the district court found that
“Sonida prevailed on its lien claim against . . . Defendant SPO” and concluded that
“[a] prevailing party in a dispute arising out of or relating to a lien action is entitled
to recover from the other party the reasonable attorney fees, costs and expenses
incurred by the prevailing party.” Section 48-2-14. SPO now appeals the district court
award to Sonida of $136,375.75 in attorney fees.
DISCUSSION
Standard of Review
{8} Ordinarily, we review an award of attorney fees for an abuse of discretion. Rio
Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 10, 287 P.3d
318. “Section 48-2-14 empowers the court to award reasonable attorney fees in the
district and supreme courts in actions to enforce mechanics’ and materialmen’s liens.”
Lenz v. Chalamidas, 1991-NMSC-099, ¶ 2, 113 N.M. 17, 821 P.2d 355 (emphasis
omitted). However, our determination of whether an unverified lien satisfies the
requirements of Section 48-2-6 involves the interpretation of a statute that we review
de novo. State ex. rel. Madrid v. UU Bar Ranch Ltd. P’ship, 2005-NMCA-079, ¶ 11,
137 N.M. 719, 114 P.3d 399. With regard to SPO’s motion for summary judgment,
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where there are no genuine issues of material fact, and the movant may be entitled to
judgment as a matter of law, our review is also de novo. Self v. United Parcel Serv.,
Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.
I. Sonida Did Not File Valid Claims of Lien
{9} We begin by addressing SPO’s argument that the district court erred by failing
to reject as a matter of law Sonida’s unverified claim of lien. In order to analyze this
issue, we must discuss the requirements for a claim of lien to be valid.
{10} Section 48-2-61 generally sets out two requirements for the contents of a valid
lien: a statement of the nature of the claim against the property owner, and a
verification by oath. The purpose of the former is to “give notice [to all interested
parties] of the extent and nature of the lienor’s claim.” Garrett Bldg. Ctrs., Inc. v.
Hale, 1981-NMSC-009, ¶ 10, 95 N.M. 450, 623 P.2d 570 (internal quotation marks
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“Every original contractor, within one hundred and twenty days after the
completion of his contract, and every person, except the original contractor, desiring
to claim a lien pursuant to Sections 48-2-1 through 48-2-19 NMSA 1978, must,
within ninety days after the completion of any building, improvement or structure, or
after the completion of the alteration or repair thereof, or the performance of any
labor in a mining claim, file for record with the county clerk of the county in which
such property or some part thereof is situated, a claim containing a statement of his
demands, after deducting all just credits and offsets. The claim shall state the name
of the owner or reputed owner, if known, and also the name of the person by whom
he was employed, or to whom he furnished the materials, and shall include a
statement of the terms, time given and the conditions of the contract, and also a
description of the property to be charged with the lien, sufficient for identification.
The claim must be verified by the oath of himself or of some other person.”
(Emphasis added.)
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and citation omitted). Since they are not in dispute in this case, we are not concerned
with the sufficiency of Sonida’s statement of the debt and terms of the claim.
{11} As to the verification requirement, we first observe that the use of the word
“must” in the statute requiring verification by oath conveys the Legislature’s setting
a mandatory precondition to the lien’s validity. The Uniform Statute and Rule
Construction Act compels us to regard the word “must” as expressing “a duty,
obligation, requirement or condition precedent.” NMSA 1978, § 12-2A-4(A) (1997);
see also, State v. Lujan, 1977-NMSC-010, ¶ 4, 90 N.M. 103, 560 P.2d 167 (holding
that the word “must” in the statute indicates “that the provisions of a statute are
mandatory and not discretionary”).
{12} It is undisputed that the claims of lien filed in this case were not verified.
Sonida attempts to address this “technical defect” by arguing that the claim as filed
satisfied the purposes of the statute, which should be “liberally construed,” and by
implication, permits “substantial compliance” by the claimant. New Mexico is a state
that affords liberal construction to the drafting of lien notices, and permits substantial
compliance with Section 48-2-6. Chavez v. Sedillo, 1955-NMSC-039, ¶ 17, 59 N.M.
357, 284 P.2d 1026. To a point. “[T]he reason which underlies the [liberal
construction rule] is that the claim of lien must not only contain a statement of the
terms, time given and conditions of the contract, but such statement must be true.” Id.
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(emphasis omitted). However, no New Mexico case has yet made the verification
requirement superfluous. For reasons that follow, we conclude that even in a common
law atmosphere with plenty of slack for drafting liens, there are requirements that are
immutable, particularly a verification upon oath of the underlying claim that must be
set out in the lien notice. Sonida misapprehends the latitude our courts have provided
claims of lien as affording sanction to their total lack of compliance with the
verification requirement of the statute.
A. Verification Requires a Formal Assertion of the Truth of the Lien’s
Contents
{13} By definition, “verification” is “confirmation of correctness, truth, or
authenticity by affidavit, oath, or deposition.” Black’s Law Dictionary, 1732 (1968
4th ed). Our courts’ construction of what it means for a lien to “be verified by the oath
of [the claimant] or of some other person” is of long standing. Section 48-2-6. “In the
early days of our history, [our Supreme Court] was disposed to hold that the
mechanics lien law was in derogation of the common law and should be strictly
construed[.]” Home Plumbing, 1962-NMSC-075, ¶¶ 6-7 (internal quotation marks
and citation omitted). This construction applied to the verification requirement.
Finane v. Las Vegas Hotel & Improvement Co., 1885-NMSC-023, ¶ 13, 3 N.M. 411,
5 P. 725 (“[Verification] is a substantial and necessary requirement, and must be
complied with in order to make the claim of lien effectual. The statute makes it
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obligatory by the use of the word ‘must,’ and we think it was error for the court below
to have admitted the [unverified] paper in evidence.”), overruled on other grounds
by Ford v. Springer Land Ass’n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541.2
{14} In Minor v. Marshall, 1891-NMSC-029, 6 N.M. 194, 27 P. 481, the Supreme
Court of the Territory New Mexico loosened the requirements for stating the claim
itself under the statute, permitting substantial compliance to suffice in alleging its five
factual requirements. Id. ¶ 6. With regard to the requirement that the claim be
“verified by the oath of himself, or of some other person[,]” it held “if such claim is
not verified, it is no notice, and binds no one; it raises no lien whatever.” Id. ¶ 7
(internal quotation marks and citation omitted). Although the strict view as to a lien’s
factual claims was repudiated in Ford, as noted above, this was only to the extent that
the statements covered by the claimant’s oath be liberally construed. Ford went on
to explain that “the notice of claim of lien, being the foundation of the action, must
contain all the essential requirements of the statute, and the failure or omission on the
part of the person claiming the lien of any of the substantial requisites of the statute
is fatal, and will defeat the action.” 1895-NMSC-011, ¶ 7. The verification
requirement has always been regarded as a requisite element of compliance with the
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Although Ford is generally recognized as overruling Finane, and instituting
the “liberal construction,” we note that the claim of lien in Ford was properly
verified, and the issue of verification was not raised. 1895-NMSC-011, ¶ 9. Ford
applied solely to the description of the claim. Id. ¶ 8.
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statute. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, ¶ 40, 38
N.M. 3, 27 P.2d 984 (citing Lyons v. Howard, 1911-NMSC-039, 16 N.M. 327, 117
P. 842), held that notwithstanding liberal construction, and substantial compliance
with verification, the claimant must still “verify [the] same on his own oath, or the
oath of some other person” to verify the good faith of his claim of right to a lien. Id.
{15} Although the requirement of verification on oath has not changed, there has
been some “liberal construction” permitted with regard to verification. Under Lyons,
“[n]o particular form of verification is required by our statute, nor is it specifically
required thereby that the verification shall be true to the knowledge of affiant.”
Lyons, 1911-NMSC-039, ¶ 5 (emphasis added). Neither is it required that the affiant
has personal knowledge of the claim’s truth. Id. ¶ 6. This is, however, the extent of
“liberal construction” permitted a lienor’s verification of good faith under Section 48-
2-6. However liberally the contents of a notice of lien might be construed, no case to
date obviates the specific requirement for a positive verification upon oath of the
contents of a notice of lien, and Sonida directs us to none. See, e.g., ITT Educ. Servs.,
Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d
969 (holding that this court does not consider arguments not supported by citation to
authority).
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B. Home Plumbing and Garrett Affirm the Requirement of Verification
{16} Liberal construction of the lien statute cannot reach so far as to rescue an
unverified lien. In Home Plumbing, two related but separate businesses sought to
foreclose on their respective claims of lien against property owned by the defendant.
1962-NMSC-075, ¶ 1. Both claims of lien were signed by the same person. On the the
first claim of lien, as in this case, the signature was only followed by “an
acknowledgment in the form generally provided by § 43-1-9, N.M.S.A.1953, for
acknowledging instruments affecting real estate.” Home Plumbing, 1962-NMSC-075,
¶ 4. The second indicated that the person who signed it, “[b]eing duly sworn . . . has
read said claim and knows the contents thereof; and that the matters and facts therein
started (sic) are true and correct.” Id. ¶ 5 (internal quotation marks and citation
omitted). Because the question in the case was “if the two claims here in issue are
verified by oath” as required by the statute, id. ¶ 6, the court concluded that the latter
claim was verified. Id. ¶ 9. The Court stated that, owing to the absence of “any words
whatsoever which by intendment, plain, or otherwise, ‘were designed to operate as
a verification,’ ” it did not “find where the statement of claim was in any manner
sworn to.” Id. ¶ 10 (internal quotation marks omitted). The Court held that liberal
construction did not apply:
While reiterating our adherence to the rule of liberal construction, we
are convinced that with a total absence of any words confirming
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correctness, truth or authenticity by affidavit, oath, deposition or
otherwise, to conclude that the acknowledgment to the instant claim of
lien was a sufficient compliance with the requirements of a verification
would be stretching the rule of liberal construction beyond recognition,
and would approach judicial repeal of the legislative mandate that
claims should be verified by oath.
Id. ¶12. Garrett also recognizes that Section 48-2-6 requires “that a materialman’s
claim of lien must be verified by the oath of the party or some other person.” 1981-
NMSC-009, ¶ 3.
{17} Because the ultimate goal in statutory construction “is to ascertain and give
effect to the intent of the Legislature[,]” State v. Cleve, 1999-NMSC-017, ¶ 8, 127
N.M. 240, 980 P.2d 23, we hold that the intent of the Legislature in enacting Section
48-2-6 is to require some positive affirmation of good faith undertaken upon oath as
to the contents of a notice of lien to render any claim thereof valid. Following Home
Plumbing and Garrett, the absence of some discernable and formal confirmation of
the truth, correctness, or authenticity of a claim of lien by the claimant or another
person constitutes no verification, and any claim of lien that fails in that regard
creates no lien.
C. Sonida’s Concept of “Substantial Compliance” Is Unavailing
{18} According to Sonida, in Garrett, our “Supreme Court recognized that the liens
at issue, even though they did not meet the statutory requirements, were filed and
recorded and were sufficient notice to the parties that the liens existed.” (Emphasis
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omitted.) It seems Sonida urges us to adopt a liberal construction rule to obviate
verification entirely, as they suppose the Supreme Court applied it in that case.
Sonida is not specific in its brief as to which “statutory requirements” Garrett dealt
with, but Sonida immediately quotes New Mexico Properties, Inc. v. Lennox
Industries, Inc. (Lennox), 1980-NMSC-087, 95 N.M. 64, 618 P.2d 1228, holding that
the lack of an acknowledgment does not defeat “an otherwise valid lien” that had
been filed and recorded between the parties to the action. We take this as an
indication that perhaps Sonida believes that since Garrett permitted unrecorded
notices to give effect to notice between “parties to the action,” 1981-NMSC-009, ¶ 9,
its acknowledgments will carry the day. However in both Garrett and Lennox, the
liens were properly verified. Lennox, 1980-NMSC-087, ¶¶ 2, 7; Garrett, 1981-
NMSC-009, ¶ 5. Both cases specifically recognized that verification was a mandatory
requirement of the lien statute. Lennox, 1980-NMSC-087, ¶ 6; Garrett, 1981-NMSC-
009, ¶ 5. Sonida’s reliance on both cases fails because the liens it filed were not
“otherwise valid” under Section 48-2-6, whatever the status of a lien’s
acknowledgments. Thus, Sonida’s briefing misstates the law in two important
respects. First, both Lennox and Garrett specifically affirmed “the statutory
requirement that the lien must be verified by oath of a party.” Garrett, 1981-NMSC-
009, ¶ 5. Second, in Lennox, our Supreme Court specifically recognized that an
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acknowledgment is “insufficient to comply with the verification requirement of
Section 48-2-6.” Lennox, 1980-NMSC-087, ¶ 6. Without compliance with the
verification to establish the lienor’s good faith in attaching its claim to the property
of another, and thereby putting the claimant’s “skin in the game” so to speak,
Sonida’s acknowledgments cannot in any way validate its claims of lien.
D. Acknowledgments Do Not Substitute For Verification
{19} Home Plumbing clearly establishes that the total absence of words of
verification in a claim of lien renders it “unenforceable.” 1962-NMSC-075, ¶ 12. “It
is established in law that a verification is a sworn statement of the truth of the facts
stated in the instrument which is verified. A verification differs from an
acknowledgment in that the latter is a method of authenticating an instrument by
showing that it was the act of the person executing it.” H.A.M.S. Co. v. Elec.
Contractors of Alaska, Inc., 563 P.2d 258, 260 (Alaska 1977). Section 48-2-6 does
not require that liens contain an acknowledgment, and a lien’s validity is not affected
by the lack of acknowledgment under NMSA 1978, Section 14-8-4 (2013). See § 14-
8-4 (“Acknowledgment necessary for recording; exceptions.”); Lennox, 1980-NMSC-
087, ¶ 7 (“Absent a valid acknowledgment, an instrument may not be treated as a
recorded instrument.”). Our Supreme Court has stated that although the lien statute
is remedial in nature and liberally construed, our appellate courts “will not apply
13
liberal construction to create a lien where none is authorized.” Vulcraft v. Midtown
Bus. Park, Ltd., 1990-NMSC-095, ¶ 12, 110 N.M. 761, 800 P.2d 195. As in Home
Plumbing, we cannot take up Sonida’s invitation to write out of existence even a
liberally-construed verification requirement. We know from Lennox, 1980-NMSC-
087, ¶ 2, that pre-printed lien forms with sufficient verifications are available for sale.
Had Sonida’s attorney verified the liens, rather than only notarized their
acknowledgments, the lien would have been valid. See Marsh v. Coleman,
1979-NMSC-067, ¶ 23, 93 N.M. 325, 600 P.2d 271 (holding that an attorney can
verify a lien stating a belief that the claims were true); but see, In re Reif,
1996-NMSC-026, ¶ 10, 121 N.M. 758, 918 P.2d 344 (holding that a verification
signed “for” the client “by” the attorney was “a nullity, being neither the oath [of the
client] nor [the attorney]”).
E. Sonida’s Lien Was Void Ab Initio
{20} We are not alone in our view that these New Mexico cases uphold the
verification requirement. Both Home Plumbing and Garrett were recognized by the
Wyoming Supreme Court as demonstrating that, even under a liberal construction and
substantial compliance rule, “the courts require some language in the lien statement
which indicates the subscriber swears to the truth of the materials contained therein
in order to comply with the verification requirement.” White v. Diamond Int’l Corp.,
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665 P.2d 463, 468 (Wyo. 1983). Similarly, the Utah Supreme Court cited Home
Plumbing as one of a number of cases holding that, although inclusion of sufficient
specified facts can constitute substantial compliance with a lien statute, the
verification requirement was a separate portion of the statute that articulates
“mandatory conditions precedent to the very creation and existence of the lien[,]”
without which “no lien is created.” First Sec. Mortg. Co. v. Hansen, 631 P.2d 919,
922 (Utah 1981) (internal quotation marks and citation omitted); Home Plumbing,
1962-NMSC-075, ¶ 12 (“[T]he court erred in its conclusion that the [unverified lien]
. . . was enforceable.”). Put another way in First Security Mortgage, “Verification is
not a hypertechnicality that we can discount. Without verification, no lien is created.
Our statute leaves no room for doubt as to the requirement of a verified notice of
claim . . . . [S]ince a mechanic’s lien is statutory and not contractual, a lien cannot be
acquired unless the claimant complies with the statutory provisions.” 631 P.2d at 922.
“The simple and conclusive answer to the suggestion is that a mechanic’s lien never
comes into existence unless the notice upon which it is founded substantially
complies with the statute which authorizes the creation of such liens.” Toop v. Smith,
73 N.E. 1113, 1115 (N.Y. 1905).
{21} Irrespective of any latitude permitted in its form, the absence of a lien
claimant’s verification upon oath defeats an immutable requirement under Section 48-
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2-6. Sonida’s failure to verify the claims of lien that it filed thus caused no valid lien
to be created. We hold that because, according to Sonida, “the Claims of Lien lack
the verification,” they are void ab initio, because no valid lien was created. They
could not therefore support a foreclosure action on the lien as a matter of law, State
ex rel. Madrid v. UU Bar Ranch Ltd. P’ship, 2005-NMCA-079, ¶ 19, 137 N.M. 719,
114 P.3d 399 (holding that failure to comply with a clear, unambiguous and
mandatory statutory requirement or condition precedent invalidated the subsequent
action), or provide any basis for action under Section 48-2-14 or attorney fees to be
awarded under that statute.
Sufficiency of a Lien Is Not an Affirmative Defense That Must Be Raised In the
Complaint
{22} SPO specifically denied in its answer that the lien(s) filed entitled Sonida either
to foreclose on them, or to any award of attorney fees in an action based upon them.
It followed up its averments by filing a motion for summary judgment on Sonida’s
foreclosure claim, requesting that the district court declare the “Claims of Lien to be
void ab initio” based specifically on Home Plumbing, as well as failure to comply
with Section 48-2-6, even by substantial compliance. Sonida’s response to the motion
conceded that “as to the form of the Claims of Lien there is no disputed fact[,]” yet
asserted that SPO was not entitled to judgment as a matter of law for failure to plead
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a fatal defect in the liens as an affirmative defense. The district court denied SPO’s
motion.
{23} Both the district court and Sonida seem to be laboring under a misconception.
SPO’s pleading that Sonida’s lien was void ab initio for failure to comply with the
statute (both with regard to its factual contents and its verification) is a purely legal
question directed to an essential element of Sonida’s foreclosure action. Sonida’s
response averred that it had no obligation to “specifically plead the verification or
other specific contents of the Claims of Lien, even though those elements might form
a condition precedent to recovery on the Claims of Lien.” This is incorrect as a matter
of law. “A lienholder must . . . prove compliance with the Act’s provisions to
establish his right to the statutory remedy and cannot claim surprise when a defendant
attempts to defeat his claim by proof of noncompliance.” Cordeck Sales, Inc., v.
Constr. Sys., Inc., 917 N.E.2d 536, 541 (Ill. App. Ct. 2009). Our courts have always
held that when a lien is specifically created by statute, the lien must comply with the
requirements of the statute. Air Ruidoso, Ltd. v. Exec. Aviation Ctr., Inc., 1996-
NMSC-042, ¶ 6, 122 N.M. 71, 920 P.2d 1025 (holding that “[a] lienor who seeks to
enforce a statutory lien must comply with any statutory requirement with respect to
enforcement of such a lien” (quoting Unger v. Checker Taxi Co., 174 N.E.2d 219,
221 (Ill. App. Ct. 1961)).
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{24} The proper verification of a lien is a mandatory predicate to its validity, and the
existence of a valid lien is an element of a cause of action in foreclosure of it. Sonida
is obligated to affirmatively demonstrate its compliance with Section 48-2-6 to plead
a prima facie case in its complaint. Sonida’s complaint alleged nothing more than it
was “entitled to claim” a lien. SPO’s raising the lien’s validity is not an affirmative
defense if based on Sonida’s failure to comply with the statute’s requirements. See
Cordeck, 917 N.E.2d at 541 (holding that the assertion of statutory non-compliance
is no surprise to the plaintiff, for whom compliance is an element of his cause of
action, and cannot be held to be an affirmative defense); Sullivan Contracting, Inc.
v. Turner Constr. Co., 875 N.Y.S.2d 695, 697 (N.Y. App. Div. 2009).
{25} Sonida’s reliance on Beyale v. Arizona Public Service Co., 1986-NMCA-071,
105 N.M. 112, 729 P.2d 1366, to defeat SPO’s motion as an affirmative defense “that
was not pled in their answer” is of no avail. In Beyale, we clearly stated that an
affirmative defense is a “state of facts provable by [a] defendant that will bar [a]
plaintiff’s recovery once a right to recover is established.” Id. ¶ 13. The invalidity of
the lien in this case is based in a defect barring the very right to recover on the
elements of the claim as a matter of law, not facts. As such, it is not an affirmative
defense. We have already held that a right to recovery cannot be established based on
an invalid lien. There is no virtue in Sonida’s assertion that it is not obligated to
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plead as part of its complaint those elements of the lien under Section 48-2-6 as a
predicate for recovery; regardless of its pleading, it had the obligation to meet its
burden of proof.
{26} Further, in Beyale, a workers’ compensation case, we held that because a
failure to give notice of an injury had not been raised by the defense until a motion
for a new trial, it was fairly denied by the trial court. We specifically stated that
although the defense must have been pled, it did not have to be specifically pled in
the defendant’s answer, as would an affirmative defense. 1986-NMCA-071, ¶ 24. In
this case, SPO raised the issue of the defect in the lien in its motion for summary
judgment, and Sonida conceded in its response that there were no material facts in
dispute concerning the form of the liens. From both parties’ pleadings regarding the
issue, we cannot but conclude that Sonida was aware of its obligations regarding
compliance with the statute.
CONCLUSION
{27} Because no lien was created, no award of attorney fees can be “related to” or
“arise out of” an action based upon a nullity. For the foregoing reasons, we reverse
the district court’s award of attorney fees and remand for proceedings consistent with
this Opinion.
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{27} IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
WE CONCUR:
__________________________________
JAMES J. WECHSLER, Judge
__________________________________
MICHAEL D. BUSTAMANTE, Judge
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